COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Decker
UNPUBLISHED
Argued by teleconference
RANDELL LOUIS KINLAW
MEMORANDUM OPINION* BY
v. Record No. 0761-16-1 JUDGE MARLA GRAFF DECKER
JUNE 20, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
Richard H. Rizk, Judge
C. Carter Allen (Carter Allen Law, P.C., on brief), for appellant.
J. Christian Obenshain, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Randell Louis Kinlaw appeals his conviction for use of a firearm in the commission of a
felony in violation of Code § 18.2-53.1. On appeal, he argues that the evidence was insufficient to
prove that he used a firearm within the meaning of the statute. We hold that the circumstantial
evidence, including a note that the appellant gave to his robbery victim stating that he had a gun and
that he did not want to hurt her, was sufficient to prove that he used a firearm in the commission of a
felony. Consequently, we affirm his conviction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND1
On November 17, 2014, Stephanie Lasley was working at a tanning salon in York
County. Around lunchtime, when no customers or other employees were present, the appellant
entered the salon. He was wearing dark jeans, a black knitted sweater, and a black “beanie.”
The appellant told Lasley that he wanted a present for his girlfriend and discussed
purchasing a gift card for a tanning session. As Lasley prepared the gift card, the appellant
“threw down a note” that “said something along the lines of . . . I have a gun. I don’t want to
hurt you. Give me the money . . . .” He instructed Lasley to “keep [her] hands up where he
could see them.” He also told her to “open the [cash] drawer,” “grab the money,” and give it to
him. “[O]ut of fear,” Lasley gave the appellant the money from the drawer.
The appellant then directed Lasley into one of the tanning rooms and asked her for her
identification. He rifled through her purse and took her debit card. He also found her driver’s
license and photographed it with his phone. Based on remarks he made to Lasley, she
understood that “if [she] said anything to the cops, . . . he could find [her].” The appellant also
told her that “he didn’t want to see anything on the news about this incident.” He instructed
Lasley to tell the police that “the guy . . . on the video [wasn’t] him.” Finally, the appellant
directed Lasley to wait in the tanning room for twenty minutes, and he then left the salon. As
soon as he did so, she telephoned her manager, who called 911. Lasley was “[v]ery scared”
during the robbery, which lasted ten to fifteen minutes.
Several days later, Lasley identified the appellant in a photographic lineup as the man
who robbed her. She did not hesitate in her identification of his photo, immediately stating,
1
In reviewing a challenge to the sufficiency of the evidence on appeal of a criminal
conviction, “we view the evidence and all reasonable inferences in the light most favorable to the
Commonwealth, the party prevailing in the trial court.” Smith v. Commonwealth, 61 Va. App.
690, 692, 739 S.E.2d 280, 281 (2013) (quoting Rowland v. Commonwealth, 281 Va. 396, 399,
707 S.E.2d 331, 333 (2011)).
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“Yes. That’s him.” In the process of making the identification, she appeared to be afraid,
exhibiting “[s]ome cowering” when the investigating officer “placed the photograph [of the
appellant] down” in front of her.
The appellant was tried for robbery and use of a firearm in the commission of a felony.
At the close of the evidence, he argued that the victim’s mere belief or perception that he had a
gun during the robbery was insufficient to prove beyond a reasonable doubt that he actually
possessed a firearm.
The trial court found the appellant guilty of robbery and use of a firearm in the
commission of a felony. In doing so, the court noted the uncontradicted evidence that the
appellant communicated to the victim, “I have a gun. I don’t want to hurt you and give me all of
your money.” The judge also noted that the appellant obtained the victim’s identifying
information, told her to lie to the police, and specifically pointed out to her, “I know where you
live.”
After trial, the appellant filed a motion to reconsider the firearm conviction. In arguing
the motion, he contended that his written note was insufficient to prove beyond a reasonable
doubt that he had a gun, given the absence of any additional evidence or “other factor”
supporting that assertion. He also noted that the victim did not specifically testify that she
believed that her assailant had a firearm.
The trial court denied the motion to reconsider. In doing so, the court again pointed to
the victim’s uncontradicted testimony that the appellant’s note to her represented that he had a
gun. The judge also found that the outfit the appellant wore during the offense, including a
“knitted sweater” and jeans, “could easily conceal a weapon.” In addition, the court concluded
that because the appellant was not immediately apprehended, he had ample opportunity “to
dispose of the gun that he possessed.”
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The court sentenced the appellant to fifty years in prison, with thirty-five years
suspended, for the robbery conviction. For the use of a firearm, it sentenced him to three years,
with none of the time suspended.
II. ANALYSIS
The appellant contends that the evidence was insufficient to support his conviction for the
use of a firearm in the commission of a robbery.2 He suggests that he “merely passed a note to
the victim” and that no evidence indicated that he “possessed[] or hid about his person any object
that [the victim] could [have] perceived . . . to be a firearm.” He further argues that the
subjective belief of the victim about the presence of a firearm is not enough to support a
conviction and, in any event, that “the victim did not testify that she believed that [he] actually
possessed a firearm.”
In considering a challenge to the sufficiency of the evidence, the appellate court views
the evidence and all reasonable inferences flowing from the evidence in the light most favorable
to the Commonwealth, the party who prevailed in the trial court. Startin v. Commonwealth, 281
Va. 374, 379, 706 S.E.2d 873, 876 (2011). “If there is evidence to support the conviction[], the
reviewing court is not permitted to substitute its own judgment, even if its opinion might differ
from the conclusions reached by the finder of fact at the trial.” Courtney v. Commonwealth, 281
Va. 363, 366, 706 S.E.2d 344, 346 (2011) (quoting Clark v. Commonwealth, 279 Va. 636, 641,
691 S.E.2d 786, 788 (2010)). The pivotal question on appellate review of a sufficiency issue is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Ultimately, the appellate court will “set aside the judgment
2
The appellant does not challenge the underlying robbery conviction on appeal.
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only if it is [plainly] wrong or unsupported by the evidence.” Powell v. Commonwealth, 268 Va.
233, 236, 602 S.E.2d 119, 121 (2004).3
Code § 18.2-53.1 provides in pertinent part that “[i]t shall be unlawful for any person to
use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a
threatening manner while committing or attempting to commit [any of several enumerated
crimes including] robbery.” The purpose of the statute is “to deter violent criminal conduct.”
Rose v. Commonwealth, 53 Va. App. 505, 512, 673 S.E.2d 489, 492 (2009). “Notably, ‘[the
statute] is written in the disjunctive, prohibiting either the actual use [or attempted use] of a
firearm[] or the display of a firearm in a threatening manner.’” Towler v. Commonwealth, 59
Va. App. 284, 294, 718 S.E.2d 463, 468 (2011) (quoting Dezfuli v. Commonwealth, 58 Va. App.
1, 9, 707 S.E.2d 1, 5 (2011)). The statute “aim[s]” not only to “prevent[] actual physical injury”
but “also to discourage criminal conduct that produces fear of physical harm.” Dezfuli, 58
Va. App. at 9, 707 S.E.2d at 5 (quoting Rose, 53 Va. App. at 512, 673 S.E.2d at 492); see
Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980).
To convict a person of using or attempting to use a firearm in violation of Code
§ 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his
possession.’” Powell, 268 Va. at 236, 602 S.E.2d at 120 (quoting Yarborough v.
Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va.
at 367-68, 706 S.E.2d at 346-47; cf. Startin, 281 Va. at 379, 706 S.E.2d at 877 (noting that the
statute prohibits the use or display of an actual firearm or “an instrumentality that has the
appearance of having the capability of an actual firearm”). Consequently, possession of a
firearm is “an ‘essential element’ of the offense,” and “the fact that [the] victim merely thinks or
3
To the extent that the resolution of the sufficiency of the evidence challenge involves
statutory construction, we apply a de novo standard of review to that portion of the analysis.
Courtney, 281 Va. at 366, 706 S.E.2d at 345.
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perceives that the accused was armed is insufficient to prove actual possession.” Byers v.
Commonwealth, 23 Va. App. 146, 150, 474 S.E.2d 852, 854 (1996) (quoting Yarborough v.
Commonwealth, 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994)).
Nevertheless, “proof of ‘actual’ possession of a firearm under Code § 18.2-53.1,” like
any element of a crime, “may be established by circumstantial evidence, direct evidence, or
both.” Id. (citing Yarborough, 247 Va. at 216-19, 441 S.E.2d at 343-44). “Circumstantial
evidence is as competent and is entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Id. at 151,
474 S.E.2d at 855 (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983)). However, whether a hypothesis of innocence is reasonable is a question of fact entitled
to deference on appeal. See id. at 152-53, 474 S.E.2d at 855. The Commonwealth at trial “is not
required to disprove every remote possibility of innocence[] but is, instead, required only to
establish guilt of the accused to the exclusion of a reasonable doubt.” Id. at 151, 474 S.E.2d at
855 (quoting Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988)).
In keeping with general principles of law regarding circumstantial evidence, one may
“use” a firearm within the meaning of the statute even if no weapon is ever actually seen by the
victim. See, e.g., Cromite v. Commonwealth, 3 Va. App. 64, 65, 67-68, 348 S.E.2d 38, 39-40
(1986) (stating that “[w]hile the evidence would have been more conclusive had [the victim]
seen a firearm, we cannot disregard the totality of [the evidence],” which included the robber’s
act of “approach[ing] with his hand in his coat pocket and st[icking] a hard object in [the
victim’s] stomach” that the victim said “felt like a gun”), quoted with approval in Towler, 59
Va. App. at 296, 718 S.E.2d at 469. Courts look to “the totality of the circumstances, including
the perpetrator’s verbal threats, the manner in which the perpetrator indicated he had a weapon,
and the victim’s response to those threats.” Towler, 59 Va. App. at 295, 718 S.E.2d at 469;
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Thomas v. Commonwealth, 25 Va. App. 681, 686, 492 S.E.2d 460, 463 (1997) (considering the
victim’s “visual and nonvisual observations of the object”); see Powell, 268 Va. at 236-37 & n.2,
602 S.E.2d at 121 & n.2 (holding that a defendant’s “statement that he had a gun . . . made in the
course of committing the crime” was relevant to proving that he used or attempted to use a
firearm in violation of Code § 18.2-53.1); McBride v. Commonwealth, 24 Va. App. 603, 607-08,
484 S.E.2d 165, 167-68 (1997) (en banc) (stating in dicta that “circumstantial evidence, such as
an assailant’s statement that he possesses a firearm, can be sufficient to prove beyond a
reasonable doubt that an accused indeed possessed a firearm”).
Here, as the trial court specifically found, the uncontradicted evidence was that the
appellant gave the victim a note that “said something along the lines of . . . I have a gun. I don’t
want to hurt you. Give me the money . . . .” The appellant also told her as he committed the
robbery to keep her hands where he could see them. The note and his additional instruction
communicated that the appellant intended to hurt the salon employee if she did not cooperate.
Further, the trial court noted that the appellant took a photo of the victim’s driver’s license and
pointed out that “if [she] said anything to the [police], . . . he could find [her],” again implying
that he had the capacity to hurt her in retaliation if she failed to follow his instructions.
Additionally, in drawing reasonable inferences from the evidence, the trial court
specifically found that the appellant could easily have concealed a firearm under the sweater and
jeans he was wearing at the time of the robbery. It also recognized that because the appellant
was apprehended several days after the crime, he had ample time to dispose of the gun that he
said he used during the robbery. Finally, the victim testified that she was “[v]ery scared” during
the robbery. In fact, when she merely saw the appellant’s photo in a photographic lineup several
days afterward, she exhibited signs of fear, immediately “cowering” when the investigating
officer placed the photo of the appellant down in front of her.
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Contrary to the appellant’s suggestion, the Commonwealth was not required to present
explicit testimony from the victim that she believed that he actually possessed a firearm during
the robbery. The question was, instead, whether the totality of the circumstances supported a
finding that he possessed and used a firearm to commit the crime. See Towler, 59 Va. App. at
295, 718 S.E.2d at 469. Applying the appropriate standard of review, on these facts, we
conclude that the evidence was sufficient to prove that the appellant had a firearm in his
possession during the robbery and used it to commit that offense. Upholding the appellant’s
conviction on these facts furthers the statute’s purpose “to discourage criminal conduct that
produces fear of physical harm.” See Dezfuli, 58 Va. App. at 9, 707 S.E.2d at 5 (quoting Rose,
53 Va. App. at 512, 673 S.E.2d at 492).
The appellant’s reliance on certain cases in support of his argument does not compel a
different result. In fact, the published case law supports the conclusion that the facts of this case
are sufficient to prove that the appellant used a firearm in the commission of robbery.
In Elmore v. Commonwealth, 22 Va. App. 424, 470 S.E.2d 588 (1996), the defendant
handed a bank teller a note stating that “this is a robbery” and that he had a gun but “did not want
to hurt anyone.” Id. at 426, 470 S.E.2d at 588-89. The defendant also whispered to the teller
that he did not want to hurt anyone and “pointed to his pocket,” which “indicated to [the teller]
there was a gun, like he had stated in his note.” Id. at 426, 470 S.E.2d at 589 (emphasis omitted).
After the teller filled a bag with money, the defendant “grabbed the bag and the note and fled.”
Id. The Court held that this evidence, which included testimony about the note but not the note
itself, was “sufficient to prove beyond a reasonable doubt that the defendant actually possessed a
firearm and used it in a threatening manner.” Id. at 429-30 & n.2, 470 S.E.2d at 590 & n.2.
Under Elmore, it is clear that a fact finder may accept circumstantial evidence involving
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primarily the assertion of a defendant that he had a gun in order to find that he did, in fact, use a
gun in the commission of a felony enumerated in Code § 18.2-53.1.
Similarly, in Powell v. Commonwealth, 268 Va. 233, 602 S.E.2d 119 (2004), the
defendant told the victims that he had a gun and would hurt them if they did not follow his
instructions. Id. at 237, 602 S.E.2d at 121. The evidence also, however, established that the
defendant did not in fact have a firearm in his possession when he was apprehended. Id.
In considering the defendant’s arguments in Powell, the Supreme Court of Virginia
addressed his claim that his out-of-court statement that he had a gun was insufficient without
corroboration to prove his guilt. Id. at 236 n.2, 602 S.E.2d at 121 n.2. It noted that the defendant
attempted to rely on the legal principle that “an extra-judicial confession is insufficient to
establish the corpus delicti of a crime unless corroborated by other evidence.” Id. (citing
Jackson v. Commonwealth, 255 Va. 625, 645-46, 499 S.E.2d 538, 551 (1998)). The Court
distinguished such a confession from a perpetrator’s statement that he had a gun “made in the
course of committing the crime.” Id. In doing so, the Court strongly implied that corroboration
of such a statement made during the commission of a crime is unnecessary.
The Court in Powell also rejected the defendant’s claim that “it may be reasonable to
infer ‘that one who says he has a gun, has a gun,’ if there is no other evidence,” but that where
the defendant is apprehended a short time later without a gun and has not been seen discarding it,
the “evidence ‘proves’ that [the defendant] did not have a gun.” Id. at 236, 602 S.E.2d at 121.
The Court reasoned that in light of the evidence, the defendant could, on the facts of the case,
have discarded a firearm without being seen. See id. at 237, 602 S.E.2d at 121. Based on that
inference, the Court observed that “evidence that no gun was found conflict[ed] with [the
defendant’s] statements and actions during the commission of the offenses.” Id. It held that the
trier of fact was entitled to resolve this conflict against the defendant, “necessarily conclud[ing]
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. . . beyond a reasonable doubt that [the defendant] had a gun.” Id., cited with approval in
Courtney, 281 Va. at 365, 367-68, 706 S.E.2d at 345-47 (affirming the defendant’s conviction
where he told the victim during the robbery that he had a gun but he had only a toy firearm in his
possession when he was apprehended, because the fact finder clearly resolved against the
defendant the issue of whether he used a real gun in the robbery).
Here, like in Powell, the appellant’s explicit assertion that he had a gun, his threatening
conduct and other statements during the robbery, the circumstances surrounding his capture, and
the reasonable inferences flowing from these facts support the trial court’s factual finding that
the appellant used a firearm in the commission of the robbery. The fact that the defendant in
Powell was also “‘fidgety’” while in the store and “kept his hand in his pocket,” circumstances
not present in the appellant’s case, does not dictate a different resolution in the instant case. See
268 Va. at 237, 602 S.E.2d at 121. Each case is analyzed based on its unique facts. In this case,
the appellant’s statements and actions, including his initial representation that he had a gun, his
photographing of the victim’s driver’s license, and his instructions to her during the robbery,
conveyed that the appellant intended to hurt the victim if she failed to comply with his orders.
The victim was “[v]ery scared” during the robbery and continued to exhibit signs of fear when
she identified him several days later. Finally, the clothing that the appellant wore at the time of
the robbery permitted the concealment of a firearm, and he had ample time to dispose of the gun
before he was apprehended. Based on the record before it, the trial court was entitled, as it did,
to reject the appellant’s hypothesis of innocence—that he merely said he had a gun and did not
actually possess one. See Courtney, 281 Va. at 367-68, 706 S.E.2d at 346-47; Powell, 268 Va. at
237, 602 S.E.2d at 121. The evidence, viewed under the proper standard, was sufficient to
support a finding that the appellant had a firearm in his possession during the robbery and used it
to commit that offense.
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III. CONCLUSION
For these reasons, we hold that the evidence was sufficient to prove that the appellant used a
firearm in the commission of robbery. Consequently, we affirm his conviction for violating Code
§ 18.2-53.1.
Affirmed.
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Randell Louis Kinlaw v. Commonwealth of Virginia
Combined Opinion